Category: digital economy

Procedural Misstep Topples Interim Order Against Google in Lottoland Dispute, or: the Power of (Missing) Ink

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By Jannes van der Merwe and Jenna Carrazedo

Introduction

On 12 of November 2024, the Competition Tribunal (“the Tribunal”) granted an interim relief order in favour of  Lottoland South Africa (Pty) Ltd (“Lottoland”) against Google Ireland Limited (“Google”) and Google South Africa (Pty) Ltd (“Google SA”). The Tribunal, sitting with a full panel of three members, provided substantive reasons in favour of Lottoland for their complaint lodged in December 2022, regarding the contravention of the Competition Act 89 of 1998 (“the Act”) by Google SA against Lottoland in 2020. The matter before the Tribunal involved Lottoland obtaining an interim relief order against Google SA for a period of six months or until the finalisation of the complaint, whichever occurs first, ordering Google SA to restore Lottoland’s access to Google advertisements (“Google Ads”) after Google SA terminated Lottoland’s access to Google Ads claiming that Lottoland had breached Google SA’s internal policies.[1]

Google brought a review against the decision by the Tribunal, arguing that the Order provided by the Tribunal is irregular because of its failure to adhere to Section 31(2)(a) of the Act. Section 31(2)(a) of the Act requires that the Chairperson of the Tribunal ensure that that at least one member of the panel is a person who has legal training and experience. Google argued that because the Order by the Tribunal was not signed by Adv Tembeka Ngcukaitobi SC (“the Presiding Member”), the appointed member with such legal training and experience, the Order by the Tribunal is irregular.

Google’s legal representatives addressed a letter to the Chairperson of the Competition Tribunal advising that the Presiding Member did not sign the decision and that this contravenes section 31(2)(a) of the Act. Google requested that the decision be withdrawn due to the Competition Tribunal acting beyond the powers conferred onto it by the Act.

Despite Google’s contention that the Order should be withdrawn, both the Chairperson of the Tribunal, and Lottoland, responded to Google, stating that the proceedings have been concluded and that the Order is in accordance with the Act, referencing Section 31(4) and 31(6) of the Act. This stance adopted by Lottoland, as well as the Chairperson of the Tribunal, caused Google to launch their review to the Competition Appeal Court of South Africa (“the Appeal Court”).

Does an irregular decision amount to no decision?

Lottoland argued that the decision taken by the Tribunal was in fact a valid decision, as it was in compliance with Section 31 of the Act. However, Lottoland argued that, while maintaining that there is a valid decision taken, on Google’s own version the Appeal Court would not have jurisdiction to hear the review, as there would have been no decision taken by the Tribunal.

On this version, Lottoland contested whether the Appeal Court has jurisdiction to hear the review matter, stating that the decision itself is not in fact a decision of the Competition Tribunal, as it did not carry the Presiding Member’s express endorsement. In this regard, Lottoland argued that the requirements for the Appeal Court to exercise its review powers in terms of Section 37(1)(a) were not present, as it does not have the power to decide whether a decision is in fact a decision of the Competition Tribunal, or declare a decision invalid, which is not a decision. In support of its argument, Lottoland contended that Google should have pursued its remedies in terms of the Promotion of Administrative Justice Act, 3 of 2000, to set aside the decision of the Tribunal.

Google argued that the ‘decision’ taken by the Tribunal is ultra vires, as the Tribunal’s failure to have all three members of the panel contribute to the proceedings and exercising its functions in terms of Section 27 of the Act, led to the Tribunal’s failure to comply with Section 31(2)(a) of the Act. They further contended that Lottoland’s misinterpretation of their argument is wrong, as Google did not argue that the failure by the Presiding Member to contribute and sign the Order resulted in ‘no decision’ by the Tribunal, but that such ‘decision’ does not comply with Section 31(2)(a) of the Act. Google proffered the argument that the Appeal Court has the authority to review the decision made by the Tribunal in terms of Section 37(1) of the Act.

Accordingly, Google did not request the Appeal Court to determine whether a decision was taken, or whether such decision was unlawful, Google argued that the rendering of the decision is procedurally irregular as it did not comply with section 31(2)(a) of the Act. This is because the Presiding Member did not sign it, and that such a decision should be reviewed and set aside.

It was ultimately found that the Appeal Court has the jurisdiction to hear the review matter.

Procedural Irregularities

It is agreed that the interim relief matter was heard before a properly constituted panel and was properly assigned, however the review application seeks to investigate whether the Presiding Member’s failure to sign the Order caused an irregularity in the decision.

Google argued that the Act empowers three members of the panel to deliberate a matter, acting jointly and their failure to do so results in the panel not acting in accordance with the Act. To this extent, it was argued that the Presiding Member’s failure to participate in the proceedings until the matter is finalised is detrimental, as the interpretation of the Act requires a member with legal training and experience to signal finality. This failure resulted in the two members issuing the decision, which was against the provisions of the Act, as the Tribunal making the decision is an authoritative body encompassed by three members, and the failure to adhere thereto renders their decision irregular.

Lottoland argued that the two-panel member’s decision is in accordance with Section 36(6) of the Act and constituted a lawful decision. Relying on the matter between JSC v Cape Bar[2], Lottoland contested that the authority supports the argument that the members of the panel did not have to act jointly when having regard to the statutory provisions, because when there is a decision made by two-members, this renders a majority decision made by the panel members. Lottoland adopted the approach that the Presiding Member’s failure to render a decision as being “exceedingly passive”, and that the two-member decision is sufficient.

However, the matter brought before the Tribunal was assigned to three members but when reasons for the decision were circulated, no comments were received from the Presiding Member, with no explanation. The Appeal Court answered this question by putting forth that the Presiding Member did not participate in the proceedings, therefore the panel did not act jointly with no explanation for his failure to participate. The Appeal Court held that the decision falls to be reviewed and set aside.

The Appeal Court also considered whether to remit the decision back to the Tribunal or substitute the Order. As confirmed in Glaxo Welcome (Pty) Ltd and Others v Terblanche N O and Others, [3] the Appeal Court can correct the decision of the Tribunal where the result is a foregone conclusion or when further delay would cause undue prejudice. The Appeal Court that there was not a foregone decision but there was delay that has prejudiced Lottoland that Google has not addressed. However, the Appeal Court expressed its concerns and difficulty in granting a substitution order when the skills and expertise of the Tribunal are for the purpose of making these decisions mindfully. Thus, the Appeal Court was not satisfied that a substitution order should be granted as such a solution would be impractical when considering the brief period left in which the interim order will still be in effect.

The decision of the Appeal Court reviewed and set aside the decision of the tribunal.

Implications of the Tribunal’s Decision

This matter again highlights the importance that correct procedure is followed as to avoid decisions from being set aside once handed down. The administrative error of the Tribunal has resulted in more questions than answers.

Lottoland’s complaint, lodged in December 2022, was set down for hearing on 19 July 2023, despite the procedural directives after the hearing, the Tribunal only provided its decision on 12 November 2024, approximately 16 months after the initial hearing. Despite this delay, the Tribunal and its Presiding Member failed to ensure that its Order was compliant with the Act. As a result, and while acknowledging Lottoland’s own failure to launch the interim relief proceedings earlier, Lottoland was prejudiced by severe delays and, according to the Tribunal’s now set aside decision, were being harmed in the market by Google SA’s conduct, restricting Lottoland from making use of Google Ads.

It is worth noting that no reason was given for the lack of the Presiding Member’s participation and signature, only that he failed to do so. The seemingly insignificant act of signing an Order to comply with formalities, alternatively, a member’s failure to contribute, carries substantial weight, this is seen in the setting aside of the decision all because the one panel member with legal training and experienced failed to sign it.

This, unfortunately, resulted in further resources being expended by both Lottoland, Google, the Tribunal, and the Appeal Court. Proper procedure should always be followed to benign topics from evolving into a long, lengthy and costly process.

This judgement sets precedent for the setting aside of a decision of what can be labelled as administrative errors due to an appointed Presiding Member’s lack of participation, leading to procedural irregularities. As the Appeal Court rightfully stated, the Act regulates and controls proceedings and the functions of the authoritative bodies exercising their duties. Failure to comply with the Act should not be disregarded as an exceedingly passive point to take, but a failure to extinguish your duties for which you were appointed in terms of the Act, which causes harm and prejudice to the litigating parties.

[1] See https://africanantitrust.com/2025/01/29/betting-on-fair-play-competition-tribunal-orders-interim-relief-to-lottoland-in-google-ads-dispute/ by Matthew Freer, setting out the merits of the Interim Relief Order.

[2]Judicial Service Commission and Another v Cape Bar Council and Another (818/2011) [2012] ZASCA 115; 2012 (11) BCLR 1239 (SCA); 2013 (1) SA 170 (SCA); [2013] 1 All SA 40 (SCA) (14 September 2012)

[3] Glaxo Welcome (Pty) Ltd and Others v Terblanche N O and Others [2001-2002] CPLR 48 (CAC).

Borrowed Blueprints, Unintended Consequences: South Africa and the EU’s Digital Markets Act

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By Matthias Bauer and Dyuti Pandya*

South Africa risks adopting the essence of the EU’s Digital Markets Act (DMA), if not its exact form, with the aim of reshaping the business models of online intermediation platforms. This marks a significant shift away from the principles of traditional competition regulation. 

In 2020, the Competition Commission of South Africa (CCSA) concluded that traditional enforcement tools might be inadequate to tackle structural barriers in digital markets particularly those that prevent new entrants or smaller players from expanding. This realisation led to the launch of the Online Intermediation Platforms Market Inquiry (OIPMI). By borrowing a regulatory blueprint designed for the EU, South Africa could undermine its own digital ecosystem, stifle investment, and entrench local inefficiencies. The country’s growing interest in ex ante competition regulation via the Competition Commission’s market inquiries reflects an accelerating trend of policy mimicry without consideration of domestic realities. While there is broad agreement on the need for digital competition regulation, there is little consensus on how these rules should be structured, and approaches to implementation remain highly varied across jurisdictions. 

The OIPMI’s final report identified platforms such as Google, Apple, Takealot, Uber Eats, and Booking.com as dominant players distorting competition. It is claimed that, due to the significant online leads and sales these platforms generate and the high level of dependency business users have on them these scaled platforms can influence competition among businesses on the platform or exploit them through fees, ranking algorithms, or restrictive terms and conditions. However, this conclusion raises concerns about the underlying methodology. A central concern with the market inquiry approach is that it allows certain platforms to be identified as market leaders or sources of competitive distortion without requiring a formal finding of dominance, since such inquiries do not mandate that dominance be established. 

The designation has been based on characteristics typically associated with globally leading technology firms. Amazon, which currently maintains only a minimal presence in South Africa, was nevertheless singled out as a potential threat to competition. It is claimed that Amazon faces similar complaints in other jurisdictions, and it is argued that fair treatment of marketplace sellers is unlikely to become a competitive differentiator capable of overcoming barriers to seller competition. Moreover, the CCSA has indicated that it would enforce the same provisions against Amazon if it were to enter the market in a way that breaches the proposed remedial measures.

Regulating for hypothetical risks while ignoring tangible consumer benefits risks becoming a self-fulfilling prophecy: global platforms may decide not to enter the market at all, leaving consumers, including small businesses and public services organisations with fewer options and slower innovation.

The OIPMI focuses on structural features that restrict competition both between platforms and among business users, facilitate the exploitation of business users, and hinder the inclusion of small enterprises and historically disadvantaged firms in the digital economy. Despite the absence of formal dominance findings, the OIPMI proposes a range of heavy-handed interventions, including the removal of price parity clauses, the introduction of transparent advertising standards, a ban on platform self-preferencing, and limitations on the use of seller data, many directly inspired by the EU DMA. 

In both of CCSA’s  2022 and 2023 findings, Google Search was explicitly accused of preferential placement and distorting platform competition in South Africa. More concerning still are the CCSA’s proposed remedies in its final report- requiring targeted companies to offer free advertising space to rivals, artificially boost local competitors in search rankings, and redesign their platforms to favour smaller firms. The SACC has recommended that Google introduce identifiers, filters, and direct payment options to support local platforms, SMEs, and Black-owned businesses, and contribute ZAR150 million (around EUR 7 million) to offset its competitive advantage. For search results, Google is required to introduce a new platform sites unit (or carousel) that prominently showcases smaller South African platforms relevant to the user’s query such as local travel platforms in travel-related searches entirely free of charge. This goes beyond competition enforcement and crosses into market engineering, compelling global firms not just to compete by government decree, but to subsidise rivals and actively shape market outcomes.

In 2025, South Africa’s Competition Commission also doubled down with its provisional Media and Digital Platforms Market Inquiry (MDPMI), calling for additional remedies targeting online advertising, content distribution, and the visibility of news media. These recommendations are again influenced by EU-style regulations, particularly the EU Copyright Directive, which harms the diversity and sustainability of small news publishers. However, the report downplays South Africa’s unique institutional constraints and specific market dynamics. If adopted, the proposals would compel digital platforms to subsidise select publishers based on arbitrary and hard-to-measure assessments of news content’s value to Google’s business. This could limit access to information, hinder innovation, and monetisation efforts, ultimately narrowing consumer choice and weakening the vibrancy of the content ecosystem.

More broadly, through these market inquiries South Africa risks undermining its evolving digital economy by pursuing an approach that will deter foreign investment due to ambiguous and discretionary enforcement. At the same time, the proposed regulatory burdens could disproportionately affect domestic firms that simply lack the resources to comply. This regulatory uncertainty threatens to stifle innovation and hinder progress toward regional digital integration. In a country where corruption remains a persistent challenge, granting regulators wide discretionary powers over digital market outcomes also raises serious governance concerns. Moreover, by enforcing a narrow and politicised notion of “fairness”, South Africa risks sacrificing consumer choice and strangling the diversity of digital services that a competitive market would otherwise deliver.

Notably, coming back to the EU’s DMA, it was crafted for specific European conditions, particularly in markets where technologically-leading global platforms held relatively high market shares in many EU Member States. Yet even within the EU, the DMA remains hotly disputed – not least because it targets large non-European companies that have long been politically embraced for injecting digitisation into traditional industries and, through competition, helped European businesses and consumers benefit from technology innovation. 

EU digital policies, developed from the perspective of wealthy, mature (Western) European markets, should not be assumed to be readily applicable elsewhere. South Africa’s digital markets are still in their infancy, ICT infrastructure remains unevenly developed, and regulatory institutions face significant resource constraints. Emulating the DMA – even informally – risks premature intervention, regulatory overreach, and the distortion of competitive dynamics before they have had a proper chance to emerge and mature.

Competition policy undoubtedly has a role in promoting competition. But poorly tailored rules may end up punishing the very firms that South Africa needs to scale and empower its own digital economy. Instead of replicating the EU’s Digital Markets Act, South Africa should focus on evidence-based case-by-case enforcement – grounded in its own market realities and institutional capabilities. Otherwise, South Africa risks becoming the casualty of a regulatory experiment designed for a different continent – with consequences its digital economy can ill afford.

*The authors are affiliated with ECIPE, the European Centre for International Political Economy

Betting on Fair Play: Competition Tribunal orders Interim Relief to Lottoland in Google Ads dispute

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By Matthew Freer

Introduction

On 12 November 2024, Lottoland South Africa (Pty) Ltd (“Lottoland”) was granted interim relief by The Competition Tribunal (“The Tribunal”) against Google Ireland Limited and Google South Africa (Pty) Ltd (collectively “Google”).

Lottoland, a licensed bookmaker as of 7 November 2017 in terms of the Western Cape Gambling and Racing Act, offers fixed-odds bets on the outcome of an array of lotteries worldwide, including the South African National Lottery and various sporting events.[1] Lottoland’s competitors include other licensed bookmakers within the country such as Hollywood Bets, World Sports Betting and Betway, among others. Google, controlled by Google LLC, is a multinational technology company specialising in internet-related services and products, including search engines, online advertising technologies and more. Google is best known for its search engine and advertising platform, Google Ads, which is a key revenue driver for the company. Google Ads allows businesses to display advertisements on Google’s search engine results pages, partner websites and other platforms using a pay-per-clicks model where advertisers bid on keywords to reach targeted audiences. Businesses utilise this service to maximise visibility with the aim of gaining more customers.

In 2020 Google terminated Lottoland’s access to Google Ads, which Lottoland argued was without justification given that the other licensed bookmakers, providing like services, still had access to Google Ad Services. This termination caused financial harm to Lottoland, and it was argued to distort the competition in this very market that Lottoland operated with detrimental effect on options available to consumers. Google’s main argument was that Lottoland’s services contravene certain sections of the Lotteries Act and by granting them access to their Google Ads services, Google’s policies and reputation could be under scrutiny in a public light.

What is an Interim Relief Application?

An Interim Relief Application, in terms of by section 49C of the Competition Act, 89 of 1998 (“Act”), is a temporary measure sought to address an alleged prohibited practice and aimed to prevent serious or irreparable harm pending the outcome of a hearing.[2] “The Tribunal will only grant such relief if it is of the opinion that it is reasonable and just, having regard to the following factors:”[3]

  • The evidence relating to the alleged prohibited practice;
  • the need to prevent serious or irreparable damage to the applicant; and
  • the balance of convenience.

The Tribunal must make a summary assessment before granting such application and this assessment is only at a “prima facie level”.[4] The Tribunal has held that the three above steps must be applied holistically whilst balancing each factor against the other. In this regard “a weak case on say irreparable harm may be counterweighted by a very strong case on the prohibited conduct. And vice versa…”.[5]

In the event an interim relief order is granted, it operates for a period of six months from its date, or the conclusion of the hearing, whichever is earliest.

What is the prohibited practice?

The basis of Lottoland’s application was that Google had contravened sections 8(1)(d)(ii) and 8(1)(c) of the Act.[6] Section 8(1)(d)(ii) states that a firm may not engage in exclusionary acts, such as refusing to supply scarce goods or services to a competitor or customer, unless it can demonstrate that the technological, efficiency, or other pro-competitive benefits outweigh the anti-competitive impact of its actions, and providing the goods or services is economically feasible.[7] Section 8(1)(c) prohibits a dominant firm from engaging in an exclusionary act if the anti-competitive effect of that act outweighs its technological, efficiency or other pro-competitive gain.[8] The overarching element that must be proved in both instances is that there must be a showing of dominance by the firm within the market in question.

A showing of dominance

Google raised the argument that they are not dominant within the ‘advertising ecosystem’ which includes both online (Google Ads) and offline advertising (print media, billboards, television, etc.) However, The Tribunal took a more detailed approach to determine the specific market Google is operating in, while accounting for the market in which Lottoland and its competitors are advertising in. The Tribunal refused the idea that the market in issue is that of the broader ‘advertising ecosystem’ but it is rather the specific market of online advertising, and even more specifically, the market for online search and search engine marketing (“SEM”) markets. The Tribunal stated that the service of Google Ads operates within this specific market, and it was proven, prima facie, that Google is likely to be dominant in this market in South Africa. Thus, rejecting Google’s argument that they should be viewed as operating in the broader ‘advertising ecosystem’.  

Lottoland submitted that Google has a market share of more than 90% in the SEM market, measured by search volume, and states that such dominance is well-established as The Commission had stated that Google is “the monopoly provider of intent-based marketing and customer acquisition in SA…”.[9]

Section 8(1)(d)(ii) and 8(1)(c) of the Competition Act

Now that dominance is established, we can break down and analyse each element that needs to be proved in terms of this section. The first element involves a refusal to supply a customer. On the face of such scenario, Google has refused to supply Lottoland with their service of Google Ads as Google terminated Lottoland’s access. Google had argued that by allowing Lottoland access to such service there is a potential for criminal liability or other commercial risks. The Tribunal’s ultimate findings was that this argument lacked basis as Lottoland’s competitors were provided access, showing an inconsistent enforcement of Google’s “internal policies”. Furthermore, The Tribunal stated that there is insufficient evidence to suggest that Lottoland had contravened the Lotteries Act.

The second element of proof is that of scarce goods or services. It was indicated in eMedia that a scarce good or service is one that is i) impossible or prohibitively expensive to duplicate or ii) there are effective substitutes for the service.[10] In GovChat, The Tribunal explained that a ‘scarce’ good or service is one that “cannot be easily duplicated without significant capital investment.”[11] Google’s main argument rested on the fact that there are numerous alternatives to Google Ads, all of which are viable and pose significant competitive constraint on Google Ads. However, The Tribunal in this case concluded that SEM services cannot be easily duplicated without significant capital investment and there is no feasible substitute, thus, rejecting Google’s argument and establishing the scarcity of Google Ads.

Alongside the above elements, it must be shown that it is economically feasible for Google Ads to supply Lottoland with Google Ads services. Lottoland seeks nothing more than to have access to Google Ads, as do their competitors. This equitable access request, and as is the opinion of The Tribunal, would prima facie not be impractical or unfeasible, the continued access to Lottoland’s rivals being a determining factor. The fact that Google has supplied Lottoland with Google Ads for some time before terminating access also suggests that it is not economically unviable to do so again.

Once the above has been established, harm is presumed, and the onus would typically shift to the respondent to show that these harmful effects are outweighed by pro-competitive gains. The Tribunal found that Google had no competition-related rationale for their actions and thus, there conduct prima facie distorts competition in the downstream market without any pro-competitive of efficiency justification presented or argued by Google.

Our assessment above, whilst done in the context of Section 8(1)(d)(ii) is also relevant for purposes of Section 8(1)(c). The Tribunal concluded that for reason stated under the section 8(1)(d)(ii) discussion, Google has also violated the provisions of section 8(1)(c). Google’s conduct has a prima facie anti-competitive effect, distorting competition by not allowing Lottoland to expand within their market relative to their rivals. The conduct was not found to be outweighed by technological, efficiency or pro-competitive gain and Google had little to no arguments in this regard.

Application of section 49C(2) of the Act

Lottoland submitted that Google’s refusal to allow it to use Google Ads resulted in Lottoland’s customer registration rate dropping significantly. Lottoland supplemented this with a monetary amount of the revenue that they had suffered as a result of Googles refusal to supply their Google Ads service, which, up until the interim relief was ordered, was ongoing. The Tribunal concluded that this is prima facie evidence that, due to Google’s conduct, Lottoland have suffered ‘serious or irreparable damage’, meeting one of the three stages of section 49C(2) of the Act. Additionally, the preamble of the Act states the importance to “provide for markets in which consumers have access to, and can freely select, the quality and variety of goods and services they desire”, with the overarching purpose of promoting and maintain competition in the Republic for the ultimate benefit of the consumer. It is clear that Google’s conduct has limited the choice for end-consumers.

With reference to ‘the balance of convenience’, The Tribunal weighed up the harm suffered by each party if they were to grant/refuse the application for interim relief, pending a decision on merits and stated that if there is clear and non-speculative evidence that suggest, and to what extent, a party will suffer harm if the relief was not given, then such relief should be given. It was stated in eMedia that “whilst there will inevitably be disputes of fact”, the Tribunal should still take a robust approach on the evidence before it, and that “if there is a prima facie right, even one open to some doubt and well-grounded apprehension of irreparable harm if the relief is not granted and ultimately granted at a final relief stage, then the balance of convenience favours the grant of the relief.”[12]

The Tribunal concluded that Lottoland had made out a prima facie case of restrictive practices and well as the irreparable harm it has suffered, therefore the balance of convenience, as shown, favours granting of interim relief. The requirements of section 49C of the Act have been satisfied and there is a case for interim relief.

Key takeaways

This case highlights critical elements that The Tribunal considers when assessing prohibited practices and granting interim relief under the Act. For a prohibited practice, The Tribunal focuses on determining market dominance, the exclusionary nature of the conduct, and whether the anti-competitive effects outweigh any pro-competitive justifications. The Tribunal’s approach to market dominance was particularly noteworthy. Instead of accepting Google’s broad definition of the market as the ‘advertising ecosystem,’ The Tribunal adopted a narrower definition focusing on the specific market for SEM services. This refined approach allowed for a more precise assessment of competition dynamics, underscoring Google’s overwhelming dominance in the SEM market.

The Tribunal further scrutinised Google’s refusal to supply Lottoland and its inconsistent application of internal policies, emphasising the scarcity of Google Ads as a service and its critical role for businesses reliant on digital advertising. Regarding interim relief, the Tribunal assesses whether there is prima facie evidence of a prohibited practice, serious or irreparable harm to the applicant, and whether the balance of convenience favours granting relief. Notably, the Tribunal’s robust and detailed approach to evaluating dominance and harm provides a roadmap for future cases, emphasizing the importance of context-specific market definitions and balancing the interests of all parties involved. This case underscores the Tribunal’s commitment to protecting competition and consumer choice while maintaining fairness in digital markets.

Joshua Eveleigh, Managing Associate at Primerio International says:

“At its crux, this matter dealt with the weighing up of the alleged risks and reputational harm to Google against the claimed foreclosure of Lottoland in the downstream market. Importantly, the Tribunal clarified that its mandate is to pronounce on how conduct may distort competition in a market.

Hence, if there is prima facie proof of anti-competitive conduct which cannot be outweighed on a balance of convenience, an application for interim relief must succeed. This is a particularly noteworthy judgement for firms operating within regulated environments. In effect, a dominant firm will be hard placed to cut-off services to a customer if, for example, it does not have clear evidence that the customer engaged in unlawful conduct.”

[1] Western Cape Gambling and Racing Act 4 of 1996.

[2] Competition Act 89 of 1998 (the “Act”), sec 49C.

[3] The Act, sec 49C(2).

[4] eMedia Investments (Pty) Ltd SA v MultiChoice (Pty) Ltd and Another, Case No. 201/CAC/Jun22 (“eMedia”), para 93.

[5] GovChat (Pty) Ltd and Hashtag Letstalk (Pty) Ltd v Facebook, Inc and Others, Case No. IR165Nov20 (“GovChat”), para 160.

[6] The Act, sec 8(1)(d)(ii) and 8(1)(c).

[7] The Act, sec 8(1)(d)(ii).

[8] The Act, sec 8(1)(c).

[9] Competition Tribunal of South Africa, Lottoland South Africa (Pty) Ltd v Google Ireland Limited and Google South Africa (Pty) Ltd, Case No: IR191Mar23 (Reasons for Decision and Order), para 78.1.

[10] eMedia, para 129.

[11] GovChat, para 113.

[12] eMedia, para 83 and 95.

Digital Platforms & Media: New SA Competition Market Inquiry

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South African Competition Commission releases its Statement of Issues in respect of the recently launched Media and Digital Platforms Market Inquiry

By Tyla Lee Coertzen

As we reported in a previous update (see here), the South African Competition Commission (“SACC”) announced and published its draft Terms of Reference (“ToR”) underlying the Media and Digital Platforms Market Inquiry (“MDPMI”), initiated in terms of section 43B(1)(a) of the South African Competition Act 89 of 1998 (as amended) (the “Act”). Following public comments and written submissions from relevant stakeholders, the SACC finalised its ToR on 15 September 2023 and, on 17 October 2023, released its Statement of Issues (“SoI”).

The MDPMI is set to focus on any market features which impede, restrict or distort competition and/or undermine the Act. Specifically, the SoI notes that the MDPMI will investigate the following areas of competition and public interest in the market:

  • “Market features that may distort competition for advertising revenue between news media organisations and digital platforms, and whether these are affected by imbalances in bargaining power.”
  • “Market features of those digital platforms that may distort competition amongst news media organisations for online distribution and advertising revenue.”
  • “The impact of generative AI tools of digital platforms on the above.”
  • “Market features of ad tech that may distort competition, affecting the level, price and share of advertising revenue to news media organisations.”
  • “The impact of the above on the quality and choice of news content to consumers, and on SME and HDP owned news organisations.”

Market players and stakeholders have further been invited to provide comments and information in relation to the SoI itself as well as the operation of the market in general. In this regard, the SACC is open to receiving comments from media publishers, digital platforms, academic think tanks, regulators, government departments, affected parties and any other relevant stakeholder. Such comments should be provided by 14 November 2023. The SoI further details the platforms to be covered by the market inquiry as follows:

  • Search engines;
  • Social media sites;
  • News aggregator sites and/or applications;
  • Video sharing platforms;
  • Generative AI services;
  • Ad Tech stack companies on the supply side, demand side and ad exchanges; and
  • Any other relevant platforms identified throughout the inquiry.

A brief summary of the pertinent issues identified by the SACC thus far are canvassed below:

  1. Competition amongst news media platforms

The MDPMI will look to investigate how news media is distributed and consumed by end-users through online channels and the evolution thereof (with a common trend of media being consumed via audio and video on online platforms).

  • Revenue services for news media platforms

The SACC will look to understand how news media platforms are funded and how such funding is set to evolve within the digital era.

  • Ad tech stack trends

There is an increased reliance on digital services and the internet which has affected the traditional advertising methods, where advertisers compete for user attention. Digital advertising has become a crucial tool for target audiences. The SACC will look to understand tech companies’ position in this regard, with many such as Google and Meta consolidating their positions. Undoubtedly, the SACC will look to understand the position of smaller players in this regard.

The SoI also provides the dates over which the public hearings in respect of the MDPMI are set to take place, namely 2-24 March 2024. With the public hearings for the Fresh Produce Market Inquiry currently underway, stakeholders might find a good example from these public hearings as to how the SACC operates its market inquiries as well as the kind of issues it intends to address, specifically those related to public interest issues.

The SACC is mandated to conclude the MDPMI 18 months from the release date of the SoI and is set to release its final findings and recommendations in January 2025.  

Primerio Director, Michael-James Currie, notes: “While several jurisdictions have similarly considered market studies into this sector, South Africa’s differing standards and express focus on public interest initiatives means the South African Competition Commission will look at the media and digital platforms market through a different lens. As we saw from the recommendations in the Online Intermediation Platform market inquiry, the remedies imposed had very little to do with addressing competition issues but primarily focused on assisting smaller firms participate in the market.”

Sweeping Inquiry Sheds Light on Online Intermediation Platforms: Competition, Opportunity, and the Road Ahead

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By Tyla Lee Coertzen and Nicola Taljaard

On 31 July 2023, the South African Competition Commission (“SACC”) released its Final Report and Decision on the Online Intermediation Platforms Market Inquiry (“OIPMI”). The OIPMI was initially launched on 19 May 2021 and after a number of requests for information, public hearings, expert reports as well as comments and engagements with stakeholders, the SACC’s findings and recommendations have finally been concluded.

The SACC is empowered to conduct market inquiries according to section 43B(1)(a) of the Competition Act 89 of 1998 (as amended) where it has reason to believe that there are market features that may impede, distort or restrict competition in a particular market; or to achieve the objects and purposes of the Act (including participation of small and medium enterprises (“SMEs”) and historically disadvantaged persons (“HDPs”).

The Inquiry: A Timeline of Discovery and Discernment

  • May 2021: The kick-off. Release of the Statement of Issues (SOI), first round of Requests for Information (RFIs), and business user survey.
  • August 2021: Heating up with the release of the Further Statement of Issues (FSOI), second round of RFIs, and a refined business user survey.
  • November 2021: The public had their say with hearings and follow-up RFIs.
  • February 2022: Expert reports and in-camera hearings added a new dimension.
  • July 2022: Provisional Inquiry Report was published, provisional findings, and recommendations were made public.
  • August to December 2022: A flurry of submissions, stakeholder engagements, and follow-up RFIs.
  • January to July 2023: Engaging stakeholders on final findings and remedial actions, sealing the deal.

What Does It All Mean?

These findings focus on the various platform categories, including the mammoth influence of Google Search. The full extent of these actions requires deep exploration, but one thing is clear: the landscape of online intermediation platforms is about to shift.

During the launch of the OIPMI, the Minister Patel of the Department of Trade, Industry and Competition (“DTIC”) commended the SACC for its great effort and the high-quality product produced in the form of the OIPMI. He further noted that the government should consider taking an inclusive response to the findings and recommendations in the OIPMI.

The findings concluded, inter alia, that Google Search is vital as a means for consumers to access all platforms, and that its paid search alongside free results business model is disproportionately advantageous to larger and more established platforms. It also found that Booking.com’s practice of restricting hotel prices on certain online networks results in a restriction of competition and allows it to make more commission by making users reliant on it. eCommerce giant, Takealot, was found to have a conflict of interest due to its retail department competing with its marketplace sellers and causing detriment to the latter. Google Play and the Apple App stores were found to charge exorbitant fees to developers and on a global level, the platforms hampered the visibility of SA-paid apps. Food delivery platforms Uber Eats and Mr D Food were found to cause difficulty to their competitors because of the lack of openness regarding the surcharges charged on menus across their platforms, as well as the limitations put on national chain franchisees. Property advertisement platforms Property 24 and Private Property were further found to have hindered their competitors by providing low interoperability to competitors in respect of listings. Property 24, together with AutoTrader and Cars.co.za were also found to have hampered small estate agents and car dealers due to the discriminatory pricing implemented by these platforms.

To combat the effects of the findings, the SACC recommended the imposition of a number of remedial actions including consumer-aiding search filters, marketing incentives to purchase local goods, the removal of restrictive pricing clauses, the segregation of internal (competing) divisions, the removal of automatically directing mechanisms to larger players, disclosure clauses to consumers and other benefits to SMEs, HDPs and consumers.

All platforms will be provided a period within which to affect the remedial actions.

A New Chapter: Where Do We Go From Here?

This OIPMI hasn’t just been about pointing fingers and exposing flaws. It’s about shaping the future of a wide range of the economy. The implications are broad, affecting everyone from big tech to the small business owner striving to make a mark in a competitive world.

Michael-James Currie, Partner at Primerio, noted “The recommendations of the OIPMI are far reaching for online platforms. Regulators need to ensure that we do not undermine those who are growing and providing significant investment the digital market in a highly competitive market where firms are competing not only with established traditional retailers but also large international players. Likewise, South Africa cannot afford to signal to international players that their business models will be substantively undermined once they establish themselves in South Africa. This is particularly so if the Commission’s remedies are not informed by objective competition concerns.”

Nigerian antitrust regulator takes up digital money lenders

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FCCPC Resumes its Digital Money Lender Registration Process 

By Nicola Taljaard 

On 26 June 2023, the Federal Competition and Consumer Protection Commission (“FCCPC”) announced the resumption of registration of Digital Money Lenders (“DMLs”) under the Joint Regulatory and Enforcement Task Force’s Limited Interim Regulatory/Registration Framework and Guidelines for Digital Lending 2022 (“Guidelines”).

In a statement signed by CEO and Executive Vice-Chairman Babatunde Irukera, the FCCPC stated that the decision to resume registration was in response to requests from both existing platforms that missed the earlier registration deadline set by the FCCPC and new businesses planning to enter the market. He explained that as part of the Joint Regulatory and Enforcement Task Force (“JRETF”), the FCCPC introduced the Guidelines to protect consumers’ rights and ensure responsible practices by digital money lenders, particularly in light of the increasing number of loan sharks and the like flooding Nigeria’s digital money market. The associated registration process/platform was also established.

The Guidelines initially required completion of the registration process by November 14, 2022, to continue operations and enjoy privileges such as access to Google Playstore and payment systems/gateways. The FCCPC, however, extended the deadline to January 31, 2023, and subsequently to March 27 of the same year.

Irukera further noted that, while the JRETF continues to work toward developing a more comprehensive and durable digital lending regulatory framework, the FCCPC remains inundated with applications for registration and thus, it will resume in accepting and approving eligible DML applications, from both businesses those that previously failed to register themselves on the basis of the initial Guidelines as well as new businesses seeking to enter the market. 

Nevertheless, Irukera cautioned that businesses that were removed from Google Playstore or halted transaction processing would only be registered after providing a statement that justifies their failure to complete the registration before the previous deadline. In addition,any late applications would be subjected to a late processing fee. 

Says Andreas Stargard, a partner with Primerio Ltd.: “This development shows that the FCCPC is not only a capable and multi-faceted (albeit young) agency, but also that it is highly attuned and quick to adapt to — in real life, and with real action taken — some of the digital-markets issues that seem to be the du jour topic of antitrust in 2023.” It shows the FCCPC’s commitment to continuously monitor the digital market and safeguard the rights of consumers against privacy violations, harassment, unconventional loan repayment strategies, and disclosed charges associated with loans.”

For the full list of DMLs that have received conditional and full approval, see here: https://fccpc.gov.ng/registration-status-for-digital-money-lenders-apps/

Market Inquiry here, Market Inquiry there, Market Inquiry everywhere! – 3 Market Inquiries in as Many Months

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By Joshua Eveleigh and Nicholas Petzwinkler

The South African Competition Commission (“SACC”) has not spared any time in demonstrating its bench strength by publishing three draft Terms of Reference for as many separate market inquiries within the first four months of 2023.

This article provides a brief overview in respect of the: Fresh Produce market inquiry (“FPMI”); Media and Digital Platforms market inquiry (“MDPMI”); and South African Steel Industry market inquiry (“SASMI”) and what this all means for firms across these varying sectors.

What is a Market Inquiry and what is its Purpose?

In brief, a market inquiry is an investigative tool used by the SACC to identify whether there are any aspects of a particular market that impedes, distorts or restricts competition by asking industry stakeholders for information regarding their business, its operations within a specific market as well as the market in general.

FPMI

On 14 February 2023, the SACC published the final Terms of Reference for the FPMI which seeks to identify and understand the state of competition within the industry, market features affecting pricing outcomes and the challenges faced by, in particular, small and emerging farmers.

The FPMI will focus on the following themes:

  1. Efficiency of the value chain, with an emphasis on the dynamics around fresh produce market facilities;
  2. Market dynamics of key inputs and its impact on producers; and
  3. Barriers to entry, expansion and participation.

The Terms of Reference also provide that the FPMI will focus on, in particular: apples, bananas, oranges / citrus, stone fruit, pears, avocados, grapes and nuts, potatoes, onions, tomatoes, sweetcorn, carrots and cabbage and will also extend to processed fruit and vegetables.

Most notably, the FPMI concerns the entire value chain, including inputs (such as fertiliser, agrochemicals and farming equipment), production, wholesalers, intermediaries, national fresh produce markets, distribution, marketing and retailers.

Given that the SACC views the fresh produce sector as a priority sector, it is foreseeable that the SACC will place increased scrutiny in its investigations across the value chain. This is particularly in light of recent and controversial Essential Food Price Monitoring Report which concluded that there were reasons to suspect that firms across the value chain may have engaged in opportunistic price increases

All Things Digital: MDPMI

On 17 March 2023, the SACC announced and published the draft Terms of Reference for the MDPMI.

The MDPMI appears to largely come off the back of several inquiries and investigations led by competition authorities globally, on the impact of digital platforms on news media publishers that use these platforms to distribute content online as well as the SACC’s recent Online Intermediation Platforms Market Inquiry (“OIPMI”) where the Publishers Support Services made submissions that the widespread shift towards digital news consumption has resulted in a substantial decline in advertising revenue.

The MDPMI will focus on whether there are any market features in digital platforms that distribute news media content which impede, distort or restrict competition, or undermine the purposes of the Competition Act, 89 of 1998 (“Competition Act”), and which have material implications for the news media sector of South Africa, which includes news publishers and broadcasters. The scope of the market inquiry will extend to the following digital platforms:

  1. Search engines (e.g. Google Search and Microsoft Bing);
  2. Social media sites (e.g. Meta);
  3. News aggregator sites and/or apps (e.g. Google News and Apple News);
  4. Video sharing platforms (e.g. YouTube and Tiktok);
  5. Generative AI services whether integrated into the above platforms or not (e.g. ChatGPT alone or integrated with Bing); and
  6. Other platforms identified in the course of the inquiry.

Evidently, the MDPMI will be far reaching and will also extend to emerging technologies, such as open AI search engines.

The draft Terms of Reference can be accessed here.

South African Steel Industry market inquiry (“Steel Industry Inquiry”)

On 07 April 2023, the SACC published the draft Terms of Reference for the Steel Industry Inquiry, and will focus particularly on inputs and raw materials (such as iron ore and coking oil) and the upstream primary steel production. The SACC notes specifically that:

Iron ore

  1. Based on 2018 estimates, the three largest market participants in the mining of iron ore account for more than 95% of total ore mined in the country with the largest participant having a market share in excess of 55% while the third-largest iron ore miner held a market share of approximately 15% which, alongside large levels of production, may result in a large degree of market power. The SACC also states that there is a need to assess the pricing mechanisms adopted by iron ore producers in South Africa to ensure the competitiveness of steel producers.
  2. It has received information that there were previously contractual arrangements in respect to allocations of capacity on the Sishen-Saldanha railway line which may result in competitive concerns. The SACC has also received complaints of differential pricing whereby larger rail customers are provided favourable rates in comparison to emerging miners.

Coking oil

  1. The SACC highlights that South African steel manufacturers rely heavily on imported coking oil which could negatively impact the sustainability of the local steel manufacturing market due to import taxes and which may allow local producers to set their prices at import parity levels.
  2. The SACC considers it important to determine whether, inter alia, there are any policy interventions to encourage the local production of coking oil and the entering of new market participants.

Upstream Primary Steel Production

  1. In its Terms of Reference, the SACC notes that there is a considerable degree of market concentration with there only being three blast furnace plants in South Africa (of which are all owned by one company). Additionally, there are six electric arc furnaces which are owned by six different companies.
  2. The SACC also notes that he pricing behaviour of upstream suppliers, in relation to the supply of long and flat steel, may have a direct impact on the ability of downstream metal fabricators to be competitive in their respective markets. Additionally, the SACC also identified that there may be high barriers to entry in the upstream level of steel production which has the ability to increase the capital requirements for entry and sustainability in various markets in the upstream level.

The Terms of Reference are open for public comment until 05 May 2023 and can be accessed here.

What do market inquiries mean for industry stakeholders?

As is evident from the scopes of the above market inquiries, market inquiries provide the SACC with broad and seemingly unfettered powers to investigate competitive dynamics within a particular sector.

More importantly, the Competition Act affords the SACC with the powers to publish binding recommendations to specifically redress any anticompetitive effects that it identifies within a market during the course of a market inquiry. In this respect, companies which may be approached by the SACC during the course of its investigations are encouraged to seek specialised competition law advice to ensure that the proper information and legal safeguards are provided to mitigate against the imposition of onerous industry recommendations.

SACC’s take on its #DigitalMarkets oversight & regulation

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The South African Competition Commission recently contributed the following summary of its activities regarding the ‘hot topic’ of so-called Digital Markets and antitrust law to the “Compendium” (not AAT’s, the actual government enforcers’ compendium document resulting from the multilateral G7 meeting organized by the Bundeskartellamt in Germany).


Whether and how you have sought to use enforcement or non-enforcement tools, law
enforcement or regulatory action to address such issues. You may wish to highlight any
particularly relevant cases.

Recent cases
The Competition Commission of South Africa (CCSA) uses various competition enforcement tools to resolve concerns in digital markets, including unilateral conduct enforcement, merger regulation, market inquiries and advocacy. In November 2021, the CCSA referred an abuse of dominance case against Facebook Inc. (now Meta Platforms Inc) to the Competition Tribunal (Tribunal), for adjudication. The CCSA’s investigation found that Facebook enforced unduly restrictive access terms and conditions to its WhatsApp platform, against GovChat. This was to remove GovChat’s threat to Facebook’s own social networking position and WhatsApp’s monetisation strategies.


GovChat is a start-up online platform through which the South Africa government communicates with its citizens through mass push notifications on the WhatsApp platform. The GovChat platform also allows citizens to access information or services pertaining to various government services or programmes such as social grants, COVID19 services or to respond to surveys / polls to rate government services / performance. Thus, GovChat plays a very important role in the lives of South African citizens and is an important interface between the government and citizens. The CCSA found that Facebook’s conducts likely contravenes the following abuse of dominance provisions contained in section 8(1) of the Competition Act No. 89 of 1998 (as amended) –


a. refusal to give a competitor access to an essential facility when economically feasible to do so (section 8(1)(b)).
b. engaging in exclusionary conduct whose anticompetitive effect is not outweighed by any efficiencies or technological gains (section 8(c)).
c. refusal to supply scarce goods or services to a competitor or customer when economically feasible to do so (section 8(1)(d)(ii)).
At the time of writing, the Tribunal had not yet allocated a hearing date for this matter.

Market inquiries
In May 2021, the CCSA launched its online intermediation platforms market inquiry (the “Inquiry”). The Inquiry is focused on digital platforms in the areas of e-Commerce marketplaces, online classifieds, software application stores, travel and accommodation aggregators, and food delivery services platforms. The inquiry has focused on three areas of competition and public interest, namely (a) market features that may hinder competition amongst the platforms themselves; (b) market features that may give rise to discriminatory or exploitative treatment of business users; and (c) market features that may negatively impact the ability of SMEs and/or historically disadvantaged firms to participate in the economy.


The Inquiry released its provisional report in July 2022 and aims to conclude its work by the end of 2022. Amongst others, the Inquiry has provisionally found that Google Search plays an important role in directing consumers to the different platforms, and in this way shapes platform competition. The prevalence of paid search at the top of the search results page without adequate identifiers as advertising raises platform customer acquisition costs and favours large, often global, platforms. Preferential placement of their own specialist search units also distorts competition in Google’s favour. The Inquiry provisionally recommends that paid results are prominently labelled as advertising with borders and shading to be clearer to consumers and that the top of the page is reserved for organic, or natural, search results based on relevance only, uninfluenced by payments. The Inquiry further provisionally recommends that Google allows competitors to compete for prominence in a search by having their own specialist units and with no guaranteed positions for Google specialist units. The Inquiry is also exploring whether the default position of Google Search on mobile devices should end in South Africa. In terms of competition amongst platforms, the Inquiry makes the following provisional findings and recommendations, amongst others:


a. In software application stores, there is no effective competition for the fees charged to app developers with in-app payments, resulting in high fees and app prices. The Inquiry’s provisional recommendation is that apps should be able to steer consumers to external web-based payment options, or alternatively a maximum cap is placed on application store commission fees.
b. Price parity clauses, evident in travel & accommodation, e-commerce and food delivery, hinder competition and create dependency, and the Inquiry therefore recommends their removal. Wide price parity clauses prevent businesses offering
lower prices on other platforms and narrow parity prevents businesses from offering lower prices on their own direct online channel.
c. In property classifieds and food delivery, new entrants and local delivery platforms face challenges signing up large national businesses, undermining their ability to compete. The Inquiry provisionally finds in property classifieds this is a result of the investment and support of large estate agencies in Private Property and recommends the divesture of their stake. Facilitating the interoperability of listings on the leading platforms is a further recommendation to support entrants. In food delivery, national restaurant chains often prevent franchisees listing on local delivery platforms and the Inquiry recommends this practice ceases along with any incentives provided by national delivery platforms to steer volumes their way.
d. In food delivery, the Inquiry also finds that the business model of substantial eater promotions alongside high restaurant commission fees can result in large surcharges on menu items which is not transparent to consumers and distorts competition with local delivery options. The Inquiry provisionally recommends greater transparency on either the menu surcharge or the share taken by the delivery platforms.
In terms of competition amongst businesses on the platforms and consumer choice, the Inquiry makes the following provisional findings and recommendations, amongst others:

a. Across all platforms there is a tendency to sell top ranking search positions to businesses which are not the most relevant to the consumer and constitute a form of advertising that is not transparent. This impacts on consumer choice and competition, especially for SMEs that cannot spend as much as large businesses. The Inquiry recommends that advertising is clearly displayed as such and that the top results are reserved for organic (or natural) search results.
b. The Inquiry provisionally finds that the extreme levels of fee discrimination against SMEs in online classifieds, food delivery and to a lesser extent travel & accommodation, hinders their participation and has no coherent justification. The Inquiry provisionally recommends that a maximum cap is placed on the fee differentials between large and small businesses, potentially at 10-15%. In food delivery it is recommended that more equitable treatment also occurs in terms of marketing commitments made in exchange for lower commission fees.
c. In e-commerce, the Inquiry provisionally finds that conflicts of interest arise in operating a marketplace for third party sellers and selling one’s own retail products. This may result in self-preferencing conduct such as product gating, retail buyers given access to seller data to target successful products, preferential display ads and promotions. The lack of a speedy resolution process also adds to the costs borne by sellers. The Inquiry provisionally recommends an internal structural separation of retail from the marketplace to implement equitable and competitively neutral processes.
d. In software application stores, the Inquiry provisionally finds that South African applications (“Apps”) face challenges to their
larger global App development companies. The Inquiry provisionally recommends that App stores provide country-specific curation of App recommendations and provide free promotional credits to South African App developers to enhance
their visibility.

Regarding the participation by historically disadvantaged persons (HDPs), the Inquiry has provisionally found that the digital economy is far less inclusive to HDPs than many traditional industries. In addition, there are considerably more challenges faced by HDPs, especially as regards funding and support. These are as follows:
a. For HDP digital entrepreneurs, general wealth inequality presents a hurdle to seed funding from close associates, and the venture capital industry offers little at this stage. Beyond seed funding, venture capital funds only seek out HDP entrepreneurs where those funds have an express mandate to that effect. Such mandates are rare beyond the SA SME Fund (a joint government and CEO initiative). The Inquiry provisionally recommends specific commitments on HDP mandates from private investors and for government to channel funds for HDP digital entrepreneurs through mandates to the venture capital sector along with requirements for transformation of the sector.
b. A lack of assets and funding hinder HDP business’ ability to onboard and exploit the opportunities provided by digital platforms.
recommendation is that all leading platforms provide HDP businesses with personalised onboarding, a waiver on onboarding costs and fees, free promotional credits, fees that are no higher than the best placed, and the opportunity for consumers to discover HDP businesses on the platform.

Advocacy interventions

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The CCSA has continued its work with the Intergovernmental Fintech Working Group (“IFWG”), which includes financial services regulators as well as the information regulator. The IFWG has produced several position papers. These include Regulating Open Finance Consultation and Research Paper, FinTech platform activity in South Africa and its regulatory implications; and the position paper on crypto assets. These papers seek to understand the growing role of FinTech’s and innovation in the South African financial sector and explore how regulators can more proactively assess emerging risks and opportunities in the market. The next steps for the IFWG include dealing with customer data ownership and data standards and engaging with the information regulator, exposition of potential competition aspects related to open finance and how to mitigate anti competition behaviours. This showcases that the regulation of digital markets requires a multidisciplinary approach.


Any steps your agency has taken to strengthen its institutional capabilities to better equip it to deal with digital competition issues (for example, by forming a special unit, recruiting more data specialists, building new investigative tools, or gathering new/different evidence).

The CCSA has prioritised strengthening its institutional capacity in digital markets by targeting the training of investigators and economists in international courses and conferences to upgrade skills. However, the CCSA has used an active enforcement approach as the prime vehicle for deepening its understanding of these markets and to upgrade toolkits at the same time. The CCSA had initiated a project to use digital tools in the detection and investigation of collusion and assist generally on digital market cases. The CCSA has partnered with academic institutions to bring in their artificial intelligence expertise rather than seeking to hire and build internal capacity.

Following engagements with national and provincial governments to understand the extent and format of tender information, the Commission has begun a process of designing algorithmic programmes to detect collusion. This has been greatly aided by engagements with other competition agencies globally to discuss their experience as to what has worked and what has not. Similarly, for data specialists the CCSA has not sought to hire in those skills yet but rather to put together a panel of local experts that may be drawn on in enforcement or research. This approach was adopted as the best means to establish what the use case is for such skills, what specific skills are most valuable and the frequency of data specialist requirements. It is only if there is an ongoing demand in investigation across different enforcement areas and the ability to sustainable source the right skillsets that the CCSA will invest in hiring. The panel approach is also a means to interest data scientists in competition law enforcement and potentially establish career paths in this area. The CCSA together with the competition authorities of Egypt, Kenya, Nigeria and Mauritius, launched a digital markets enforcement initiative, given the greater shared challenges that digital markets pose for African countries. The aforementioned jurisdictions recognize that these challenges necessitate closer co-operation in order to share knowledge, develop effective strategies in digital markets and provide a stronger united front in dealing with global tech companies. The initiative has agreed to enhance strategic collaboration between the authorities by: (i) Scoping the conduct in digital markets, that has been the subject of investigation in other jurisdictions, on African consumers, businesses and economies with the purpose of fair regulation and enforcement in Africa (where applicable); (b) Researching the barriers to the emergence and expansion of African digital platforms and firms that may contribute to enhanced competition and inclusion in these markets for the benefit of African consumers and economies; (c) Cooperating in the assessment of global, continental, and regional mergers and acquisitions in digital markets, including harmonizing the notification framework; without prejudice to confidentiality commitments; (d) To share information in accordance with existing laws and applicable protocols; and (e) Sharing knowledge and build capacity to deal with digital markets. As part of this initiative, a series of technical workshops are forthcoming in 2022 to commence the collaborative baseline research mapping the digital landscape in all participating countries. This research will assist in obtaining a deeper understanding of the extent of consumer adoption and emerging market structure across the main types of digital markets in a country. Country-specific factors across Africa will impact on the extent of adoption by consumers and the emergence of domestic digital firms alongside global ones.

The CCSA has continued its engagement with the European Union (EU) to provide an opportunity for mutual learning using the SA/EU Dialogue Facility to host a series of workshops in partnership with the Directorate-General of Competition in the European Commission (DG Comp). The Dialogue has been extended and will examine issues of remedial action and data protection issues in a forthcoming workshop in 2022.

Whether, in your jurisdiction, (a) there have been any national reforms or new laws or regulations to better address digital competition issues, or (b) there are any significant proposed reforms pending before national legislative or regulatory bodies to better address digital competition issues.

The Inquiry has provisionally identified the potential need for proactive regulations or guidelines in respect of a few categories of circumstances in addition to the remedial action proposed in the provisional report. First, to bring potentially new leading platforms within the ambit of the current proposed remedies that would be imposed on existing leading platforms. Second, to proactively prevent certain conduct in intermediation platforms that are still maturing and where the conduct is likely to emerge in the future, but where there is clear potential for harm. The provisional proposal for regulations or guidelines would cover the following areas: a. A process for the identification and review of leading platform status b. Prohibition of the following conduct which has an adverse effect on intermediation platform competition (1) The use of price parity clauses (wide or narrow) or achievement of the same outcome through price quality factors in the SERP ranking algorithm; (2) Restrictions or frictions on multi-homing by business users including exclusivity arrangements, interoperability limitations and multi-year contracting; (3) Loyalty schemes that leverage the leading position of the platform, including visibility on the platform, to get business users to fund the scheme in whole or part. c. Prohibition of the following conduct which distorts competition amongst business users and/or results in their exploitation (1) Self-preferencing conduct of any sort; (2) Discrimination in listing, commission or promotional fees against SMEs/HDPs beyond a maximum cap; (3) A lack of adequate transparency over promoted listings as advertising; (4) The excessive sale of visibility through demoting organic results; and (5) Permitting algorithm biases that favour one group or another.

Any law enforcement, regulatory, or policy work by your agency concerning digital competition issues that has involved interaction with non-competition agencies or other laws or policy areas—such as privacy, consumer protection, or media sustainability—and how it was or is being handled.

Work in the fintech area is being done through the IFWG as outlined above. The CCSA has also put together a workshop with the Information Regulator of South Africa to discuss the interface of the two agencies around data privacy and data access for competition.

FTC and USAID launch Africa-focussed digital competition initiative

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USAID AND THE FEDERAL TRADE COMMISSION LAUNCH TRUST AND COMPETITION IN DIGITAL ECONOMIES INITIATIVE TO PROMOTE CONSUMER PROTECTION AND COMPETITION IN AFRICA’S DIGITAL ECONOMY

From the USAID/FTC Press Release dated Oct. 3, 2022:

USAID announced it will partner with the Federal Trade Commission (FTC) to launch a new initiative that will help protect consumers and increase competition in countries across Africa. This initiative will strengthen legal and regulatory frameworks and the institutional capacity to ensure that the benefits of the digital economy are not undermined by anti-competitive, unfair, or deceptive practices.

Robust frameworks for competition and consumer protection are indispensable foundations for partner countries seeking to promote inclusive economic growth, sustain economic competitiveness, promote gender equality and equity, support resilient democratic institutions, and strengthen the rule of law.  

Where these foundations are weak or non-existent, a country’s digital economy can become vulnerable to a range of risks and harms, including online fraud, scams, cyber attacks, data misuse, algorithmic bias, gender-based discrimination, corruption, and abuses of market power. While each of these are damaging in their own right, they can collectively contribute to deeper economic and governance concerns if left unchecked, including economic inequality, reduced local and foreign investment, reduced competitiveness, and weakened democratic institutions.  

The FTC will use its technical expertise, capacity-building programs, convening power, and relationships across the region to help authorities adopt and implement policy, legal, regulatory, and enforcement frameworks. The FTC will pursue these lines of engagement in concert with other U.S. Government counterparts, regional bodies on the African continent, and country-level counterpart authorities.

This initiative advances USAID priorities outlined in the USAID Digital Strategy to strengthen inclusive, open, and secure digital ecosystems in countries where USAID works. This initiative also aligns with and advances broader U.S. Government strategies, programs, and initiatives, including the Digital Connectivity and Cybersecurity Partnership (DCCP), Declaration for the Future of the Internet, U.S. Strategy Toward Sub-Saharan Africa, and National Strategy on Gender Equity and Equality.  

The Trust and Competition in Digital Economies initiative is managed by USAID’s Innovation, Technology, and Research Hub and Center for Economics and Market Development.  

Further information on this initiative is available at this page.